The hidden cost of Senate gridlock: Obama can't fire anyone

Like virtually all of Washington, the Senate shut down last week in the face of heavy snow. But while a closed gas station is very different from an open gas station, a closed Senate is increasingly hard to distinguish from an open one. On Tuesday, for instance, the body held a vote on whether it would hold a vote on the nomination of Craig Becker to sit on the National Labor Relations Board. Becker, a Yale-educated law professor and an associate general counsel at the Service Employees International Union, got only 52 votes in favor of a vote, and he needed 60. Thus, no vote, and his nomination was left undecided.

But Becker was one of the lucky ones. There are hundreds of open positions that need Senate confirmation to be filled. The process, however, has ground to an ugly halt. Dozens of nominees are sitting in limbo because the Senate either hasn't made the time to act on them or one senator or another has decided to prevent action on them. The politicization reached its logical apogee when Sen. Richard Shelby (R-Ala.) put a hold on nearly all of Obama's nominees because he wanted some pork projects expedited in his home state.

It's tempting to write this off as more partisan bickering in a town where partisan bickering is the official pastime. But it's much more pernicious than that. The politicization of the nomination process is usually understood as an obstacle to the president's ability to hire people. In reality, it may be doing even more damage to his ability to fire people. And that's not something members of either party should support.

The Treasury Department is a good case in point. This may be the most turbulent economy since the 1930s, but the agency tasked with navigating it is still waiting for a number of key nominees to be confirmed, including the undersecretary for international affairs and the undersecretary for domestic finance. Meanwhile, the boss himself, Treasury Secretary Timothy Geithner, is under tremendous criticism from Democrats and Republicans alike. Some even want him fired.

But he can't be fired, and it's not because he's doing a bang-up job. It's because Obama can't be confident that he could be smoothly replaced. The only thing worse than an unpopular Treasury secretary is no Treasury secretary at all.

The problem gets worse as it goes deeper. It's not just that Geithner can't be fired. It's that he, in turn, can't fire anybody. Treasury is understaffed, and there's little reason to believe that the Senate will consider its nominees anytime soon. If Geithner is displeased with the performance of an appointed subordinate, he can't ponder whether America would be better off with another individual in that office. Instead, he must decide whether America would be better off if that office were empty.

This has a couple of effects. For one thing, it makes the bureaucracy less accountable, and over the long run, it makes it less effective. Plenty of Senate Republicans complain that schools can't fire bad teachers, but they've made it so that department heads can't fire bad undersecretaries. For another, it pushes the White House and the agencies to rely on positions that don't require Senate confirmation, leading to a proliferation of advisers and counselors who don't have the power of appointees and aren't subject to any congressional scrutiny. It's the worst of both worlds.

President Obama took the first step toward changing the situation last week, when he threatened recess appointments if the Senate didn't expedite the nomination process. Judged by his predecessor's record, he's late on that: Bush had made 10 recess appointments by this point in his presidency, which might explain Congress's willingness to act on his nominees. If they didn't, Bush would appoint them anyway. The same benefit accrued to Obama: Shaken by the president's threat, the Senate approved 29 of his nominees Thursday night. (Turns out they weren't so controversial after all.)

But recess appointments won't fix everything. They're only good till the end of the Senate's term, for instance. And the underlying problems remain. The Senate is still a polarized and dysfunctional place, where a single lawmaker can delay all business because he wants an FBI lab built in Alabama.

More worrying than the cranks is the workload. The Senate is still a busy place with too many issues to cover and too little time to consider them. Some of these nominations aren't acted upon simply because, well, there's a jobs bill to worry about and a health-care reform bill to figure out and a budget to pass and a thousand other things.

In that context, the nominee to lead the State Department's efforts on Bulgaria falls far down the priority list, and that means that the slightest whisper of opposition is enough to scotch the deal. Even if you have the votes to break a filibuster, it takes almost a week of floor time to do so. That's time you can't spend on other matters, and that's hard to justify when other matters are so pressing.

The easiest way to fix all this would be to reduce the number of positions requiring Senate confirmation. It's obvious why the nominee for Treasury secretary must come before the Senate, but do we need a hearing for the director of the European Bank for Reconstruction and Development? The undersecretary of commerce for export administration? The co-chair of the Northern Border Regional Commission? How many senators, exactly, do we think have an informed opinion on these positions, much less on the nominees to fill them? There's a reason that a board of directors will pick a company's chief executive but not vote on each and every product manager.

As things stand, more than 1,500 nominees come before the Senate for confirmation. Because the senators don't know much about them nor care much for their fates, they hold them hostage in return for unrelated things they do care about. Sen. Jim Bunning (R-Ky.), for instance, held up a deputy trade representative because he wanted the government to lobby Canada to lift its restrictions on candy-flavored cigarettes (seriously). His objection was absurd, of course -- but so was the fact that he was asked about the deputy trade representative at all.